Case C‑375/15

BAWAG PSK Bank für Arbeit und Wirtschaft und Österreichische Postsparkasse AG

v

Verein für Konsumenteninformation

(Request for a preliminary ruling from the Oberster Gerichtshof)

(Reference for a preliminary ruling — Directive 2007/64/EC — Payment services in the internal market — Framework contracts — Prior general information — Obligation to provide that information on paper or on another durable medium — Information transmitted by means of the electronic mailbox of an online banking website)

Summary — Judgment of the Court (Third Chamber), 25 January 2017

1.        Approximation of laws — Payment services in the internal market — Directive 2007/64 — Framework contracts — Prior general information — Information relating to changes to the conditions — Requirement to provide information on a durable medium — Concept of durable medium — Website — Included — Conditions

(European Parliament and Council Directive 2007/64, as amended by Directive 2009/111, Recitals 21 and 22, Art. 4, point 25)

2.        Approximation of laws — Payment services in the internal market – Directive 2007/64 — Framework contracts — Prior general information — Information relating to changes to the conditions — Requirement to provide information on a durable medium — Scope — Information transmitted by means of the electronic mailbox of an online banking website — Included — Conditions

(European Parliament and Council Directive 2007/64, as amended by Directive 2009/111, Arts 4, point 25, 36(1), 41(1), 42 and 44(1))

1.      As the Advocate General pointed out at points 51 to 63 of his Opinion, and as was found in essence by the EFTA Court in its judgment of 27 January 2010, Inconsult Anstalt v Finanzmarktaufsicht (E-4/09, EFTA Court Report 2009-2010, p. 86, paragraphs 63 to 66), it must be held that certain websites have to be classified as ‘durable mediums’ within the meaning of Article 4(25) of Directive 2007/64.

With regard, in particular, to paragraphs 40 to 42 of the present judgment, that is the case when a website allows the payment service user to store information addressed personally to that payment user in a way accessible for future reference for a period of time adequate to the purposes of the information and allows the unchanged reproduction of the information stored. Furthermore, for a website to be regarded as being a ‘durable medium’ within the meaning of that provision, any possibility that the payment service provider or another professional to whom the management of that site has been entrusted could change the content unilaterally must be excluded.

That interpretation corresponds to the aims set out in recitals 21 and 22 to Directive 2007/64, namely: the protection of payment service users and, in particular, consumer protection.

(see paras 43-45)

2.      Articles 41(1) and 44(1) of Directive 2007/64/EC of the European Parliament and of the Council of 13 November 2007 on payment services in the internal market, amending Directives 97/7/EC, 2002/65/EC, 2005/60/EC and 2006/48/EC and repealing Directive 97/5/EC, as amended by Directive 2009/111/EC of the European Parliament and of the Council of 16 September 2009, read in conjunction with Article 4(25) of that directive, must be interpreted as meaning that changes to the information and conditions, provided for under Article 42 of that directive, and changes to the framework contract as well, which are transmitted by the payment service provider to the user of those services through the electronic mailbox of an online banking website, may not be considered to have been provided on a durable medium within the meaning of those provisions, unless these two conditions are met:

–        that that website allows the user to store information addressed to him personally in such a way that he may access it and reproduce it unchanged for an adequate period, without any unilateral modification of its content by that service provider or by another professional being possible; and

–        if the payment service user is obliged to consult that internet website in order to become aware of that information, the transmission of that information is accompanied by active behaviour on the part of the provider aimed at drawing the user’s attention to the existence and availability of that information on that website.

As the Advocate General noted, in essence, in point 79 of his Opinion, the sending of a letter or email to the address regularly used by the user of those services to communicate with other persons and which the parties agreed to use in the framework contract entered into between the payment service provider and that user could, in particular, constitute such behaviour. The address thus chosen may not, however, be the address assigned to that user on the online banking website managed by the payment service provider or another professional to whom the management of that site has been entrusted, in so far as that site, even if it contains an electronic mailbox, is not used by the same user for the purposes of his usual communication with persons other than that provider.

In the event of the payment service user being obliged to consult such a website in order to become aware of the relevant information, that information is merely made available to that user within the meaning of the first sentence of Article 36(1) of Directive 2007/64, as amended by Directive 2009/111, when the transmission of that information is not accompanied by such active behaviour on the part of the payment service provider.

(see paras 51, 53, operative part)